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New to Ohio: The Postnuptial Agreement

Section 3103.061 of Ohio Revised Code, effective March 23, 2023, now allows for married couples to engage in postnuptial agreements that may alter their legal relations with each other, modify or terminate a previous similar agreement, or make provisions for the division of property or define support for either of them of their children.

A postnuptial agreement is a written contract executed after a couple gets married to settle assets in the event of a separation or divorce. This is not unlike a prenuptial agreement in that it can define asset division or support in the event of a divorce or other termination of the marriage.

Why you may want to consider getting one drafted:

  1. You considered but decided against getting a prenuptial agreement, and now you wish you had done so.
  2. A prenuptial agreement did not seem necessary before the marriage, but your financial situation changed later in life. Perhaps unpredicted debt has built or one of you has started a business.
  3. It helps understand and classify the ownership of assets whether individually or jointly owned, including assets that were premarital.
  4. It adds a level of security to a relationship, by allowing for in-depth and important (albeit unsexy) conversations regarding finances, responsibilities, and other future plans. Knowing where each other stands takes away the stress of not knowing what to expect out of the relationship.

Things that a postnuptial agreement cannot do:

  1. This type of agreement can only be entered into with the consent of both parties to the marriage. The postnuptial agreement must be in written form and signed (and notarized) by both parties.
  2. A postnuptial agreement cannot define child support or custody arrangements.
  3. A postnuptial agreement cannot force a divorce.

An experienced divorce attorney can draft a postnup in the even you are interested in establishing this type of arrangement. Alternatively, it is important to know what if you are presented with a postnuptial agreement by your spouse, you should review the terms with your own divorce attorney. You have the right to negotiate terms of this agreement, and your spouse’s attorney cannot advise you as to your best interest.